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Sita Singh v. State Of Punjab .
Factual and Procedural Background
This bundle of criminal miscellaneous petitions arises from convictions under various provisions of the Narcotic Drugs & Psychotropic Substances Act, 1985 ("the Act"). The petitioners sought suspension of sentence and release on bail pending appeal by invoking Section 389 of the Code of Criminal Procedure, 1973 ("CrPC"). The State opposed these applications on the ground that the Act contains specific provisions which, according to the State, preclude suspension of sentence or release on bail during the pendency of an appeal.
The short question posed to the High Court, and considered in this opinion, is whether the High Court has the power under the Act to suspend sentence or release convicted persons on bail while their appeals are pending.
Legal Issues Presented
- Whether the High Court has the power to suspend sentence or release convicted persons on bail under the NDPS Act during the pendency of an appeal.
- Whether Section 32-A of the NDPS Act (which provides that, subject to Section 33, no sentence awarded under the Act shall be suspended, remitted or commuted) bars the High Court from exercising powers under Section 389 CrPC to suspend sentence pending appeal.
- Whether Section 36-B of the NDPS Act (which saves the High Court's powers under Chapters XXIX and XXX of the CrPC "so far as may be applicable") preserves the High Court's power to suspend sentences under Section 389 CrPC despite Section 32-A.
Arguments of the Parties
Petitioners' Arguments
- Section 32-A of the NDPS Act is essentially borrowed from Sections 432 and 433 of the CrPC, which deal with governmental powers to suspend, remit or commute sentences; therefore Section 32-A does not address the High Court's power on appeals under Section 389 CrPC and does not create an embargo on that power.
- Section 36-B of the NDPS Act saves the powers of the High Court by making Chapters XXIX and XXX of the CrPC applicable "so far as may be applicable," which would preserve the High Court's power under Section 389 CrPC to suspend sentences pending appeal.
State's Arguments
- The State's counsel objected that the Act contains specific provisions (notably Section 32-A) which prevent suspension of sentence during the pendency of an appeal, and therefore the High Court cannot grant suspension or bail in such circumstances.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Narcotics Control Bureau v. Kishan Lal, (1991) 1 SCC 705; A.I.R. 1991 SC 558 | Held that the High Court's power to grant bail under Section 439 CrPC is subject to the limitations contained in the amended Section 37 of the NDPS Act. | The court relied on this authority to show that Section 37 governs bail when a person is accused and facing trial, and that Section 439 (trial-stage bail) is constrained by Section 37. The opinion distinguishes those trial-stage limitations from the appellate power under Section 389 CrPC. |
| Berlin Joseph @ Ravi v. State, 1992 (1) Crimes 121 (Full Bench, Kerala High Court) | Interpreted Section 32-A of the NDPS Act as intended to go beyond merely curbing governmental powers under Sections 432 and 433 CrPC, and to remove wider powers (including those of courts) to suspend/remit/commute sentences. | The court expressly adopted and respectfully agreed with this view, treating Berlin Joseph as support for the proposition that Section 32-A places an embargo on suspension/remittance/commutation by courts as well as governments. |
| Oliver Fernando PTV v. Assistant Collector of Customs, 1990, Drugs Cases P. 362 (Division Bench, Madras High Court) | Held that Section 32-A is equivalent to Sections 432 and 433 CrPC and that Section 36-B preserves the High Court's power to suspend sentence under Section 389 CrPC. | The opinion considered this decision but ultimately disagreed with its conclusions, noting that Section 32-A's non-obstante clause and Section 36-B's "as far as may be applicable" wording indicate that Section 32-A can and does curtail High Court powers to suspend sentence. |
| Amarjit Singh & Prem Singh v. State (Delhi Administration), 1993 (2) Recent CR 466 (Division Bench, Delhi High Court) | Held that the High Court has power to release a convicted person on bail pending appeal, but that Section 389 requires reasons to be recorded and Section 37 should be kept in mind. | The court reviewed this decision but disagreed, concluding that once a conviction is recorded the condition of "reasonable grounds for believing that he is not guilty" cannot be met and that Section 32-A removes the appellate power to suspend sentences. |
Court's Reasoning and Analysis
The court began by identifying the statutory framework introduced by the 1989 Amendment (Amendment Act 2 of 1989). It discussed Section 37 (non-bailable offences and the stringent conditions for bail for offences punishable with five years or more), and relied on the Supreme Court's decision in Narcotics Control Bureau v. Kishan Lal to show that Section 37 limits bail during trial under Section 439 CrPC.
The opinion distinguished between two different CrPC powers: (a) Section 439 (powers to grant bail to accused during trial) and (b) Section 389 (powers to suspend sentence and release a convicted person on bail pending appeal). The court noted that the Supreme Court's ruling in Kishan Lal dealt with trial-stage bail and Section 37, and that the question in the present petitions concerned appellate-stage suspension under Section 389 CrPC.
The court then turned to Section 32-A of the NDPS Act, which states, subject to Section 33, that no sentence awarded under the Act (other than under Section 27) shall be suspended, remitted or commuted, "notwithstanding anything contained in the Code of Criminal Procedure, 1973 ... or any other law for the time being in force." The court viewed this non-obstante opening phrase as a legislative device to give overriding effect to Section 32-A over contrary provisions in the CrPC or other laws.
The petitioners' submission that Section 32-A only targeted governmental powers under Sections 432 and 433 CrPC and thus left intact the High Court's power under Section 389 CrPC was rejected. The court reasoned that Section 32-A does not confine itself to governmental powers and, read with Section 33 (which specifically refers to Section 360 CrPC and the Probation of Offenders Act), indicates legislative intent to curtail wider powers, including those of appellate courts.
The court addressed Section 36-B (which saves powers conferred by Chapters XXIX and XXX of the CrPC "so far as may be applicable") and emphasized the qualifying language "so far as may be applicable." The court concluded that this saving clause does not revive powers that Section 32-A has specifically withdrawn; the Legislature intentionally used limiting language, and thus did not intend to preserve appellate powers (such as suspension under Section 389) where Section 32-A operated to remove them.
In evaluating precedents, the court considered decisions from Madras and Delhi High Courts that held that the High Court retains power to suspend sentence pending appeal, but the opinion disagreed with those views. The court cited and followed the Full Bench of the Kerala High Court in Berlin Joseph @ Ravi, which supported the broader operation of Section 32-A to place an embargo on suspension, remittance and commutation of sentence, including in appellate contexts.
The court further reasoned that once a conviction has been recorded after trial, the evidentiary findings underlying conviction are sanctified and therefore the first ingredient required by Section 37 (that there are reasonable grounds for believing the accused is not guilty) cannot be satisfied post-conviction. That practical reality bolsters the interpretation that the power to suspend sentence during appeal is withdrawn by Section 32-A.
Holding and Implications
Holding: The court concluded that the High Court does not have powers because of embargo under Section 32 of the Act to suspend, remit or commute the sentence during the pendency of the appeal. (The opinion dismisses the petitions seeking suspension of sentence or release on bail.)
Direct consequences and implications:
- The applications for suspension of sentence/release on bail were dismissed.
- Because the accused persons remained in custody, the court directed that the appeals should be listed for final hearing within six months.
- The opinion indicates that no wider appellate power to suspend sentence exists under the Act once Section 32-A is read together with Section 33 and Section 36-B; the judgment treats this as a statutory embargo rather than creating a new judicial exception. The court did not purport to lay down a novel precedent beyond its statutory interpretation; rather it followed existing Full Bench authority (Berlin Joseph) and distinguished other High Court precedents it considered to be incorrect on this point.
V.S Aggarwal, J.:— The short question involved in the bunch of criminal miscellaneous petitions is, if the High Court has the power to suspend the sentence or release the convicted persons on bail under the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as an ‘Act’) during the pendency of the appeal.
2. To take grip of the situation of the basic common fact be well settled. All the petitioners have been convicted under different provisions of the Act. They all seek suspension of the sentence by invoking the provisions of Section 389 of the Code of Criminal Procedure, 1973. The objection or the learned counsel for the State is that sentence cannot be suspended during pendency of the appeal in terms of specific provisions of the Act.
3. The law started taking shape with the Amendment Act (2 of 1989). Certain provisions of the Act were amended or substituted. Section 37 of the Act reads as under:—
“37. Offences to be cognizable and non-bailable:—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) —
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless
(i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.
4. The question had arisen if the High Court had the power to admit a person accused of an offence on bail during the pendency of the trial. It was set at rest with the decision of the Supreme Court in the case of Narcotics Control Bureau v. Kishan Lal, (1991) 1 SCC 705 : A.I.R 1991 SC 558. After scanning through various precedents, the Apex Court finally held that the powers of the High Court to grant bail under section 439 are subject to the limitations contained in the amended Section 37 of the Act. The specific findings are reproduced below for the sake of facility:—
“For all the aforesaid reasons, we hold that the powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said Section are applicable to the High Court also in the matter of granting bail. The point of law is ordered accordingly.”
5. In other words, the conclusions arrived at by the Supreme Court were that a person accused of an offence punishable for a term of imprisonment of 5 years or more can only be admitted to bail during the trial if the Court on an application being opposed by the Public Prosecutor is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. There is no doubt that such a provision would be attracted only during the course of trial and not after the person is convicted of an offence by Special Court or Court of Session. Power to exercise under Section 439 of the Code of Criminal Procedure is different than the powers exercisable under Section 389 of the Code of Criminal Procedure. Here it is the suspension of the order against the accused and consequent release of the convict on bail. It is not so, while a person is facing trial.
6. Section 32-A was also added in the Act. By virtue of the Amendment Act 2 of 1989 w.e.f 29.5.1989, the said provisions reads as under:—
“32-A. No suspension, remission or commutation in any sentence awarded under this Act:—
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force but subject to the provisions of section 33, no sentence awarded under this Act (other than Section 27) shall be suspended or remitted or committed.”
7. It is in the fitness of things that it should be read with Section 33 of the Act which also is reproduced below for the sake of facility:—
“33. Application of Section 360 of the Code of Criminal Procedure, 1973 and of the Probation of Offenders Act, 1958:—
Nothing contained in Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 1958) shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age or that the offence for which such person is convicted is punishable under Section 26 or Section 27.”
8. Learned counsel appearing for the petitioner urged that provisions under Section 32-A are basically borrowed from Sections 432, 433 of the Code of Criminal Procedure. The provisions under Section 432 & 433 deal with the powers of appropriate Governments to suspend, remit or commute the sentences. In the view of the learned counsel, Section 32-A of the Act does not deal with the powers of the High Court's appeal and it is not putting any embargo on the powers of the High Court to suspend the sentences under Section 389 of the Code of Criminal Procedure.
9. I am afraid the said plea does not cut any ice because reading of Section 32-A of the Act clearly indicates that the Legislature in its wisdom has only dealt with the powers to suspend, remit or commute any sentence. It does not refer to the powers only of the appropriate Governments, but specifically makes the same subject to Section 33 of the Act. Section 33 of the Act refers to the powers of the Court under Section 360 of the Code of Criminal Procedure or in the Probation of Offenders Act, 1958. Since there is specific reference to Section 33 of the Act, Section 32-A of the Act by necessary implications, as is clear from the plain reading of these provisions that Section 32-A refers to powers of Appellate Court also and puts an embargo in the right of the appellate Court not to suspend the sentence awarded. In this connection, one can borrow words from the decision in the case of Berlin Joseph @ Ravi v. State, 1992 (1) Crimes 121. The Full Bench of the Kerala High Court held as under:—
“Next is, if legislative intent in enacting Section 32-A of the NDPS Act is only to curb the governmental powers under Sections 432 and 433 of the Code, clear and necessary words in Section 32-A would have been conveniently employed in the provision. Instead of saying “notwithstanding anything contained in the Code”, Section 32-A could have been worded as “notwithstanding anything contained in Chapter 32 of the Code”. That apart, the words “or any other law for the time being in force” in Section 32-A would further show that the sole aim of the provision is not to fetter exclusively the power envisaged in Sections 432 and 433 of the Code”.
10. I am in respectful agreement with the said view of expressed. This is for the added reasons that Section 32-A opens with non obstantive clause “notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force”. It is well known that non-obstantive clause is legislative evidence which is adopted to give over-riding effect to certain provisions, over some contrary provisions that may be found in the same enactment or some other acts and this is to say to avoid the operation and effect of all contrary provisions. The powers of the government to suspend, remit or commute the sentence passed on a particular accused are contained in Sections 432 & 433 of the Code of Criminal Procedure and at the risk of repetition of powers of the High Court to suspend the sentence of a convict during the pendency of the appeal against conviction and sentence are contained in Section 389 of the Code of Criminal Procedure. Therefore, non-obstantive Clause covers the provisions contained in all these three sections.
11. In that event my attention was drown to Section 36-B of the Act. This provision was pressed into service by the learned counsel for the petitioner in an attempt to bring home the fact that powers of the High Court under Section 389 have been saved. The said provisions read as under:—
“36-B. Appeal and revision:— The High Court may exercise, so far as may be applicable, all the powers conferred by Chapter XXIX and XXX of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Sessions trying cases within the local limits of the jurisdiction of the High Court.”
12. A perusal of the same shows that powers of the High Court have been saved as conferred by Chapter XXIX and XXX of the Code of Criminal Procedure. Section 389 of the Code of Criminal Procedure is a part of Chapter XXIX of the Code. But the words which till the balance are “as far as applicable”. It clearly shows that all provisions of Chapter XXIX & XXX of the Code of Criminal Procedure have not been made applicable to the powers of High Court while hearing appeals or revisions. As already pointed out above, Section 32-A has intended to curtail powers of High Court to suspend the sentence. When there is a special provision relating to the same, one need not ponder further to conclude that by using the expression ‘as far as it may be applicable’ the Legislature did not confer powers of High Court which have specifically been withdrawn, in this case, by virtue of Section 32-A of the Act.
13. Reference to some of the precedents cited would be in the fitness of things. The Division Bench of the Madras High Court in the case of Oliver Fernando PTV v. Assistant Collector of Customs, reported as 1990, Drugs Cases P. 362, observed as under
“Apart from that the language of the section itself shown that it cannot refer to the powers of the Court, since the High Court has no power to remit or commute the sentence which vests only with the Government under Sections 432 and 433 of the Code of Criminal Procedure, the Section is equivalent to Sections 432 and 433 of the Code. Under Section 432(1) of the Code the appropriate government is given ample powers to suspend the execution of sentence or remit the whole or any part of the punishment to which any person has been sentenced to punishment of an offence. Apart from that we have already extracted Section 36-B of the Act which in categorical terms says that the High Court may exercise as far as may be applicable all powers conferred by Chapter XXIX and XXX of the Code. It is couched in such general terms as to exclude any limitations on such powers. It is significant to note that the power of the High Court to suspend sentence is provided under Section 389 of the Code which comes under Chapter XXIX of the Code. The Parliament in its wisdom has chosen to leave the powers of the High Court to suspend sentence unaffected by providing Section 36-B of the Act.”
14. My attention has also been drawn to the Division Bench decision of the Delhi High Court in the case of Amarjit Singh & Prem Singh v. State (Delhi Administration), 1993 (2) Recent CR 466. The Division Bench of Delhi High Court by and large agreed with the view of the Madras High Court in the case of Oliver Fernande PTV (supra), but concluded that powers have to be exercised keeping in view provisions of Section 37 of the Act. In paragraph 12 the following findings had been arrived at:—
“12. We are, therefore, of the opinion that High Court has power to release a convicted person under the Act on bail pending hearing of his appeal before it. But then we must sound a word of caution, Section 389 requires in that case the reasons to be recorded in writing and the High Court will certainly take into consideration the preamble of the Act and provisions of Section 37 of the Act while exercising powers to release a convict on bail pending his appeal. These will serve as proper guidelines while exercising discretion in releasing the conviction appeal. The Supreme Court has said in Kishan Lal's case 1991 (1) Recent Criminal Reports 338 the dominant purpose underlying the Act had to be borne in mind and it will be a sound judicial discretion to take into consideration the provisions of Section 37 of the Act as well while exercising discretion in releasing the convict on bail pending his appeal. Because of the view which we have taken it is hardly necessary for us to analyse various judgments while were referred to us during the course of arguments by both the parties.”
15. With respect I am unable to agree with the said view-point for the reasons recorded above. The reasons recorded by me get support from the Full Bench decision of Kerala High Court in the case of Berlin Joseph @ Ravi (supra), wherein this question was specifically referred to the Bench of the Kerala High Court. It was held that Section 32-A is intended to put an embargo against suspension, remittance and commutance of sentence of a convicted person if it is during pendency of the appeal or otherwise.
16. In fact the same conclusions can be arrived at from the Legislative intent. It has already been noted above that under Section 37 of the Act, a person accused of an offence during the pendency of the trial is not to be admitted to bail unless the Court is satisfied that there are reasonable grounds for believing that he has not committed such offence and that he is not likely to commit any offence while on bail.
17. Once the Court had recorded findings and has concluded on basic of evidence that accused appellant is guilty of the offence under the Act, the first ingredient that there are reasonable grounds for believing that he is not guilty will not be attracted. After the stage of trial, such material get sanctified as evidence proving the commission of the offence till the conviction or sentence is set-aside on appeal. It is, therefore, has to be apparent that powers to suspend the sentence during the pendency of the trial had been withdrawn.
18. For these reasons, I hold that the High Court does not have powers because of embargo under Section 32 of the Act to suspend, remit or commute the sentence during the pendency of the appeal. The applications fail and are dismissed.
19. Since accused persons are in custody, it is directed that appeals should be listed for final hear within six months.
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